Wednesday, December 28, 2016

A Differential Clock Under § 425.16(f).

Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism, No. G052660 (D4d3 Dec. 22, 2016)

From when does the sixty-day clock to file an anti-SLAPP motion run under Code of Civil Procedure § 425.16(f)?

This real estate case is a veritable alphabet soup of inscrutable acronyms. So much so that the facts are hard to follow. In any event, Plaintiff sued defendant on two causes of action. The complaint was amended three times, with the third amended complaint alleging two additional causes of action. All of the claims arise from basically the same fact pattern. Defendant filed an anti-SLAPP motion against the third amended complaint attacking all four causes of action. By this time it is well past sixty days from the filing of the original complaint, but withing the sixty-day window for the third amended. Which gives rise to an argument over whether the motion is timely under § 425.16(f), which requires an anti-SLAPP motion to be filed within “60 days of the service of the complaint” unless the court in its discretion decides to permit a late filing.

So the essential questions are: (1) When does the clock start? and (2) Is it restarted by the service of an amended complaint?

Reviewing the case law, the court holds that the sixty day window can run from an amended complaint. Otherwise, a plaintiff could insulate SLAPP-able claims by waiting to allege them till later versions of the pleadings filed more than sixty days after initial service. But, according to the court, that doesn’t mean that an amended complaint restarts the clock for all claims. Relying on last year’s HP decision, the Court found that the sixty-day window runs on a claim-by-claim  basis from the date on which a claim first appears. So the clock had run on the two claims that had appeared in the original complaint, but the motion was timely as to the new claims in the third amended. The court notes its holding is in some tension with Yu v. Signet Bank/Virginia, 103 Cal. App. 4th 298, 313, 315 (2002), which could be read to mean that the whole clock restarts with each amendment.
For some reason, however, the court doesn’t address whether, for reasons of judicial economy or otherwise, the trial court should or could have exercised its discretion and considered the motion on the other two claims.

But that doesn’t matter very much in the grander scheme of things, because the motion was properly denied on the merits. The parties agreed that the two new causes of action arise from the settlement of a prior unlawful detainer case, which is a form of protected activity. But Plaintiffs made a prima facie showing that they could succeed on the two claims.


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